KUSUM KUMRIA Vs. S P KUMRIA

JUDGEMENT

(1.) By an order dated 21.4.2003 this Court had directed that the following issue be decided as a preliminary issue:- " Whether the plaintiffs have locus standi to file the instant suit" OPP" The issue has arisen because the plaintiffs are seeking to enforce their alleged preemptive right to purchase the undivided share of defendant No.1 on the basis of the provisions of Section 22 of the Hindu Succession Act, 1956. The said Section reads as under:-

(2.) Upon a reading of Section 22 of the Hindu Succession Act, 1956 (hereinafter referred to as "the said Act"), it becomes clear that a preferential right to acquire property has been granted to heirs of the intestate specified in Class I of the Schedule. The word "intestate" has been defined in the said Act in Section 3(g). A person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect. In the present case, the "intestate" is one late Mr R.R. Kumria. He died on 22.5.1962 leaving behind five Class I heirs: Smt. Savitri Kumria (widow), Shri S.P. Kumria (son), Shri Sudershan Kumria (son), Smt Urmila Kalia (daughter) and Smt Nirmala Sirba (daughter). Smt. Savitri Kumria also died on 25.5.1972. The daughters i.e., Smt. Urmila Kalia and Nirmala Sirba have relinquished their entire shares in favour of their brothers Shri S.P. Kumria and Shri Sudershan Kumria. Thus, the position on the death of Smt. Savitri Kumria on 25.5.1972, was that there were only two surviving Class I heirs of Shri R.R. Kumria and they were the only owners of their equal undivided shares in the entire property left by late Shri R.R. Kumria. The said Shri Sudershan Kumria also died on 24th January, 1994 leaving behind his widow Smt. Kusum Kalia, Son (Mohit Kumria) and daughter (Ms Ratna Kumria), who are arrayed as plaintiffs 1, 2 and 3 respectively. The suit was initially filed by these plaintiffs when the defendant No.1 (Shri S.P. Kumria) was alive. The suit was filed because, according to the plaintiffs, the defendant No.1 (S.P. Kumria) had sold his undivided share to the defendant No.2 by virtue of a registered Sale Deed dated 17.10.2001. Immediately thereafter, the suit was instituted on 8.11.2001 and shortly thereafter, i.e. on 17.11.2001, Shri S.P. Kumria, who was a bachelor, passed away. He left behind as his legal heirs the present plaintiffs and the two sisters, Smt Urmila Kalia and Smt Nirmala Sirba, who have been brought on record by virtue of the order dated 11.7.2005.

(3.) An objection was raised by the defendant No.2 that the present suit is not maintainable because the plaintiffs have no locus standi for maintaining such a suit. The learned counsel for the plaintiffs, however, submitted that the plaintiffs clearly had locus standi. She submitted that when late Shri R.R. Kumria died, Shri Sudershan Kumria was admittedly a Class I heir. The plaintiffs are the Class I heirs of Shri Sudershan Kumria. The learned counsel for the plaintiffs submitted that the son of a pre-deceased son is recognised as a Class I heir as per the Schedule to the said Act. She submitted that the position of the plaintiff No.2 as on the date when the cause of action arose, would be the same as that of a son of a pre-deceased son of late Shri R.R. Kumria inasmuch as the plaintiff No 2's father Sudershan Kumria had passed away on 24.1.1998.